The AALS Section on Family and Juvenile Law will meet at the AALS Annual Conference on Thursday, January 4, 2007, from 10:30 a.m. to 12:15 p.m. The session will feature presentations on “Hot Topics in Juvenile and Family Law.” Panel moderator is June Rose Carbone, Prof. & Assoc. Dean, Fac. Prof’l Dev., Santa Clara University School of Law (and The Edward A. Smith / Missouri Chair in Law, the Constitution and Society at University of Missouri-Kansas City School of Law, beginning in spring, 2007). Papers to be presented include:

The New Uniform Representation of Children In abuse, Neglect, and Custody Proceedings Act: Bridging the Divide Between the Pragmatists and the Idealists – Barbara Atwood, Mary Anne Richey Professor, Arizona

Britain's highest court has decided a child custody dispute between two lesbian former partners by ruling that the biological mother takes precedence. The two women, identified only as C.G. and C.W., had a 7-year relationship, and during that time C.G. bore two children conceived through artificial insemination. After a protracted legal battle, C.W. won an order from an appeals court for shared custody.

For those of us who include celebrity divorces and marriages as case studies in our family law classes, here are some of the latest possibilities:

Whose Jurisdiction?

Pamela Anderson will marry Kid Rock in France. And California. And Michigan. And Tennessee. She said her nuptials with the rocker, whose real name is Bob Ritchie, will take place near St. Tropez, France. The former "Baywatch" star said the celebrations will also take her across the United States."We had to do Malibu, we've got to do Detroit, and we've got to do Nashville," she said.IndyStar.com

Celebrity Divorces

Former Beatle Paul McCartney has filed for divorce from his second wife, Heather Mills McCartney, and she will in turn file counter claims in the case, her spokesman said on Saturday.CNN International.com

Prince's wife, Manuela Testolini Nelson, filed the petition to end their five-year union. People

Common Pleas Judge Carol Hanna refused a request by attorneys for murdered Blairsville dentist Dr. John J. Yelenic Jr. to grant a posthumous divorce. (See our May 23rd posting for more background) Yelenic, 39, was found murdered in his home April 13, a day before he was to sign paperwork finalizing his divorce.

The Michigan Supreme Court has ruled that a man lacked standing to bring a paternity action, even though he was listed as the father on a child's birth certificate and in an affidavit of parentage executed in the hospital and then helped raise the child for more than four years until he and Mother separated. Mother was married to another man when she became pregnant and concealed the pregnancy during the divorce. Michigan law provides standing to bring paternity actions only for children born out of wedlock or for whom a court has determined by clear and convincing evidence that the child is not issue of the marriage. In Mother's default judgment of divorce, the court stated that it appears that “no children were born of this marriage and none are expected.” The Michigan Supreme Court, in a 4-3 decision, held that the plaintiff did not have standing under the Paternity Act "because the default judgment is not clear and convincing evidence that the child was not an issue of the marriage."

The dissenting opinions had strong words for the majority:

In this case, the majority again evidences a rigid adherence to woodenstrictures such as the presumption of legitimacy even where, as here, the purposesof the presumption are not served. The majority has exhibited a consistent patternof ruling against putative fathers who seek to exercise their due process rights withrespect to children they claim as their own. (dissent by Kelly, J.)

In adopting defendant’s position that the divorce judgment was insufficientto establish that her child was born out of wedlock, the majority renders a defaultjudgment in this case meaningless; it condones and encourages gamesmanship bya party to a child custody proceeding; and it allows a party to prevail, in significantpart, because of that party’s own delinquency in failing to participate in an earlierjudicial proceeding. (dissent by Markman, J.)

The Ohio Supreme Court has held that a natural parent who lost permanent custody of a child does not have standing to file a petition for custody of that child as a nonparent. The mother in this case had her child permanently placed with the state agency in 1997. In 2003, after mother had substantially improved her circumstances and learned that her daughter had not been adopted and had not adjusted well to foster care, sought to restore her parental rights. According to the court, however, a parent whose parental rights with respect to the child have been terminated may not request modification of a termination of parental rights.

An Oklahoma county judge has been asked to reconsider awarding custody of a woman's two boys to her ex-husband -- a registered sex offender. Associate District Judge Michael DeBerry ruled last month that frequent moves by the boys' mother, Joni May Nelson, showed instability and that the home of the father, Dustin Mitchell Seymour, 'is the more fit and proper custodial placement for the minor children.' Seymour, 27, was charged in August 2004 with three counts of second-degree rape and one count of interfering with an officer. The charges came after Nelson said she found a videotape in his pickup that showed him having sexual intercourse with a 14-year-old girl. Nelson called police and Seymour was arrested. Nelson's motion to reconsider will be heard by DeBerry on Monday. Nelson, 27, also was ordered to pay $237.50 per month in child support. Her attorney, Phillip M. Andre, says DeBerry's ruling apparently went against a state statute that says it should be presumed to not be in the best interest of a child for a sex offender to have guardianship or custody. Seymour and Nelson divorced Oct. 6, 2004. The next month, Seymour married the alleged rape victim in Colorado, according to the marriage license. They now have a child and are living in a camper-trailer until they buy a home, his attorney, Kenneth Farley said.

Read the story from the AP Wire Service at TulsaWorld.com (last visited July 27, 2006 bgf)

Maryland's highest court has agreed to hear a challenge to the ruling by a circuit court judge in January that the state law banning same-sex marriages is unconstitutional. In a brief order dated Wednesday and issued Thursday, the Court of Appeals granted a motion to bypass the Court of Special Appeals and put the case on the docket for arguments in December. That means there will be no action on the politically explosive issue until after the November election. Baltimore Circuit Judge M. Brooke Murdock struck down the law defining marriage as between one man and one woman on Jan. 20 but stayed the effect of her ruling while it was being appealed by the state.

In a follow up to our July 13th posting on a Virginia teenager's request to be permitted to use alternative medicine to treat his cancer, a Circuit judge suspended an earlier ruling forcing him to undergo traditional treatment. Attorneys representing the Cherrix family said the eventual outcome of the case could have broad implications for the decision-making powers of parents in Virginia.

The Wisconsin Supreme Court reversed a trial court court's termination of a mother's parental rights holding that the trial court had acted "solely due to Mother's status as an incarcerated person without regard for her actual parenting activities or the condition of her son in violation of Wis. Stat. § 48.415(2) and the mother's substantive due process rights." The 4-2 decision turned on the fact that Mother had been told that a condition of getting her son back would be to find safe and suitable housing within 12 months, which would have been impossible since she was still incarcerated during that time. The court ruled that conditions of return must be tailored to each individual case and that the nature of the parent's conviction and length of sentence can and should be among the considerations for parental unfitness, but not the only factor. Other factors cited include the likelihood that the child will be adopted, the child's age and health, the relationship between the parent and the child, the parent's level of cooperation, and the best interests of the child.

"In a dramatic turnaround from her first murder trial, Andrea Yates was found not guilty by reason of insanity Wednesday in the drowning of her children in the bathtub. The 42-year-old woman will be committed to a state mental hospital and held until she is no longer deemed a threat. If she had been convicted of murder, she would have been sentenced to life in prison. Yates stared wide-eyed as the verdict was read, then bowed her head and wept quietly. Her relatives also shed tears, and the children's father, Rusty Yates, muttered, "Wow!" as he, too, cried." By Angela K. Brown, AP, Yahoo News Link to Article (last visited 6-26-06 NVS)

Some jurors in Andrea Yates' capital murder retrial struggled with the wording of the verdict during deliberations, wanting to find her both guilty of drowning her children and insane, the panel foreman said. The jury found her innocent by reason of insanity Wednesday, after nearly 13 hours spent deliberating over three days.

"There were certain of us that would rather it have said 'guilty, but insane,'" jury foreman Todd Frank said after the verdict was announced. "We had discussed that at length as being an affirmative defense, but it still didn't sit well with everyone." By Paul J. Weber, AP, Star-Telegram.com Link to Article (last visited 7-26-06 NVS)

This is just a fascinating case from Oklahoma that's been sitting on my desktop for weeks now. The case involves a request to vacate a divorce decree on the grounds of fraud.

The dissent summarizes the case nicely:

The parties were dealing with a problem common to many middle-class Americans: How do couples preserve their marital assets in the face of a catastrophic illness? Their solution was to obtain a divorce in which Husband received virtually all the marital property, thereby qualifying Wife for government assistance when her progressive illness caused her health to deteriorate to the point that she needed nursing home care. Husband promised to care for her in the home until that time. Only after Husband allegedly breached his promise of care did Wife move to set aside the decree.

The majority found that the "The statutory ground of incompatibility does not permit the court to dissolve a marriage merely because its termination is desired by one or both parties.... Incompatibility must be established "by proof, objective in its character, of causes to which marital disharmony is attributed [and cannot be] bottomed on a mere subterfuge or after-thought [without] a substantial foundation." Thus, the court concluded:

The parties here colluded to misrepresent incompatibility as a ground for divorce (when they actually intended to continue cohabitating) and, in turn, used the sham divorce to deceive public agencies concerning Wife's eligibility for public benefits. It not only offends public policy for parties to obtain a divorce on a concocted ground, but it also offends public policy to use such a divorce for financial gain. Rather than leave the parties where we find them, we believe equity and justice require they be returned to the state of matrimony.

The dissent would have reversed the trial court's judgment vacating the divorce.

Thinking this case couldn't be that unique, I've looked around for other recent cases presenting similar issues but have found none. Indeed, the Oklahoma court relied primarily on precedent dating from the first half of the 1900s. I can't help but think there are plenty of couples out there contemplating divorce though they plan on continuing to live together. This case leads me to revise my lesson plan on divorce to include a discussion of collusive divorce - not as a historical artifact of fault-based divorce - but as a current strategy by couples.

The United States District Court for the Northern District of Oklahoma has held that at least some of the challenges brought by same-sex couples to the Defense of Marriage Act will survive a motion to dismiss.

The court that none of the couples had standing to challenge Section 2 of the act, which provides that no state be required to give effect to a public act or judicial proceeding of another State "that is treated as a marriage under the laws of such other State" that a lesbian couple who had a civil union in Vermont and also had been married in Canada. Even the couple who had established a civil union in Vermont and were legally married in Canada lacked standing. The court relied heavily on the reasoning of Smelt v. County of Orange, 447 F.3d 673, 683 (9th Cir. 2006) and concluded that they did not have standing to challenge Section 2 of DOMA because a civil union is not a marriage. Their Canadian marriage did not give standing because "the word "State" in Section 2 of DOMA (like use of the word "State" in the Full Faith and Credit Clause) was not intended to include foreign countries but instead was intended only to include states within the United States."

The court did find sufficient evidence of standing for this couple to survive a motion to dismiss in regards to the challenge the definitional section of DOMA. The court rejected the argument that same-sex couples were no more harmed in that their civil union could not be recognized as marriage than would any other legal relationship, such as a business partnership. The court commented: "It seems to ignore common sense and to elevate form over substance to equate these two types of legal relationships for purposes of analyzing the injury suffered as a result of the federal definition of marriage."

The court granted dismissals on the Full Faith and Credit Clause and Privileges and Immunities Clause challenges but found that the challenges to Section 3 based on the Equal Protection Clause and Substantive Due Process Clause are sufficient to survive a motion to dismiss. "The Court concludes that such challenges are more appropriately decided at the summary judgment stage, because they may involve specific factual findings related to the purpose and justifications for the law."

What is a father? Today, a judge in Hudson County is expected to issue his legal opinion on fatherhood in the case of a Staten Island man trying to claim half of his late daughter's inheritance. The case involves a New Jersey law that divides the estate of someone who dies without a will between the person's parents if there are no children or other descendants. The attorney for the deceased woman's mother believes the judge's ruling will break legal ground in defining and interpreting parental inheritance. The legal case hinges on whether the Staten Island man, Ruben Martinez, should still be considered the woman's legal parent even though he admits in court papers that he was not very involved in his daughter's upbringing and did not pay child support.

Read more of the article by Rudy Larini from New Jersey's Star-Ledger (last visited July 25, 2006 bgf)

The Association of Family and Conciliation Courts is hosting the Seventh International Symposium on Child Custody Evaluations: Great Debates in Child Custody Evaluation on October 19 - 21, 2006 in Atlanta.

"The development of AFCC's Model Standards of Practice for Child Custody Evaluation has sparked widespread and intense debate about the child custody evaluation process. The 2006 Sumposium will tackle the issues head on and feature three exciting debates:

The Association of Family and Conciliation Courts is hosting the Seventh International Congress on Parent Education and Access Programs: Parenting After Separation and Divorce: Emerging Issues for Educators on October 22 - 23, 2006 in Atlanta.

"Whether it is new research on child development or advances in technology, effective educational programs for separated and divorcing parents are dynamic and constantly changing. Now is the time to take a fresh look at your program and to learn and network with the leaders in the field. This is a great opportunity to exchange ideas and share perspectives with experienced providers. The conference will help participants examine challenging questions, including:

Can technology enhance or replace face-to-face educational programs?

What are the latest research findings about children in separating and divorcing families?

"A jury convicted a man Friday of killing his father, stepmother and two stepsisters 17 years ago inside their church parsonage home so he could attend some high school prom events. The St. Joseph County jury found Jeffrey Pelley, now 34, guilty on four counts of murder after deliberating more than 25 hours since Wednesday. Pelley faces up to 260 years in prison when he is sentenced September 15." CNN.com Link to Article (last visited 7-24-06 NVS)

"To make the letter look right, Marie needed a computer, so one day in March she walked to a public library. There she composed at the keyboard, but the writing didn’t go well. She had the first of her five children at 13, spent part of her teenage years in a group home and part in the home of her crack-addicted mother and never reached high school. “You know,” she told me later, “the way I sound sometimes doesn’t sound like it’s supposed to.” But she wasn’t leaving that library without the letter she needed. College students were studying nearby, and Marie, who is 29, interrupted one of the girls. To this stranger, she confided her situation. And soon, with the girl’s help, she began again.“To whom it may concern,” she typed, “I am writing to you to appeal for the return of my children.” Marie (I am using her middle name, as well as the middle names of her children, to protect their privacy) lost her kids, all of them boys, to the State of Connecticut more than a year ago." By Daniel Bergner, N.Y. Times Magazine Link to Article (last visited 7-24-06 NVS)